Guardianship

What is guardianship?

Guardianship is a legal relationship whereby a court gives one person (the guardian) the power to make
personal and/or financial decisions for another (the ward). A Guardian of the Person may be appointed
when a court determines that an individual is unable to care for herself. Likewise, a Guardian of the
Estate may be appointed when an individual is unable to attend to his financial affairs or her estate by
reason of mental illness, mental retardation or physical incapacity.

When is a guardianship appropriate?

Guardianship is appropriate when impaired judgment or capacity poses a major threat to a person's welfare.
A medical evaluation by a licensed physician is necessary to establish the proposed ward's condition.
However, only a court can determine the need for a guardian.

How can I become a guardian?

Assuming that a physician is prepared to attest to the proposed ward's incompetence, a petition must be
filed with the Probate Court requesting the appointment of a guardian. Two petitioners must sign the
petition and the proposed guardian must file a bond with the court. Then, the court directs that the heirs
of the ward and the ward herself receive notice of the filing of the petition for guardianship.
The court sets a date by which anyone wishing to object may do so, including the proposed ward.
Then a hearing is held where a judge decides whether a guardian should be appointed.

How long does this appointment last?

A temporary appointment can last 90 days. A permanent appointment may last until the death of the ward
or the guardian, until the ward is able to establish that she is competent, or until the guardian resigns
or is removed by the Probate Court.

What authority does the guardian have?

Unless limited by the court, the guardian has total control over the finances and the personal decisions
of the ward. This includes deciding where the ward will live, determining how the ward's funds will be spent,
and making routine medical decisions for the ward. For medical decisions involving extraordinary medical care,
the administration of antipsychotic drugs, commitment to a mental health facility, or the sale of the ward's
real estate, the guardian has to seek the approval of the court in a separate proceeding.

What are the responsibilities of the guardian?

In addition to those concerning authority to consent to medical treatment, the guardian must account carefully
for all of the ward's income and any expenditures made on his or her behalf. This is accomplished by the
guardian filing an inventory listing the ward’s assets with the court as of the date of appointment and
by filing annual accounts with the court detailing all the income and expenses the ward has. A final account
must be filed when the guardianship is terminated. The guardian is liable for her acts until the court
allows (approves) the account.

What are the alternatives to guardianship?

There are several less restrictive alternatives to guardianship. These include the durable powers of attorney,
representative payees, trusts, and health care proxies. Each of these options may avoid or delay the need
for a guardian. These documents need to be executed before the individual is incapable of doing so due to
mental impairment.

Trusts

What is a trust?

A trust is a separate legal entity for holding and investing property. One or more persons (the "trustee")
holds property, usually real estate or investments, for the benefit of another or several other people
(the "beneficiary"). The person who gives the property for the trust is known as the "donor" or "grantor".
The trustee holds legal title or interest and is responsible for managing, investing, and distributing
the assets or property of the trust. The beneficiary holds an equitable or beneficial interest.

What are the benefits of establishing a trust?

Depending on your situation, there can be several advantages to establishing a trust. Most well known
is the advantage of avoiding probate. That is, in a trust that terminates with the death of the donor,
any property in the trust prior to the donor's death passes immediately to the beneficiaries by the terms
of the trust without requiring probate. This can save time and money for the beneficiaries. Certain trusts
can also result in tax advantages both for the donor and the beneficiary. Or they may be used to protect
property from creditors, to help the grantor qualify for Medicaid, or simply to provide for someone else
to manage and invest property for the grantor and the named beneficiaries. Trusts are private documents
and only those with a direct interest in the trust need know of trust assets and distribution. If well
drafted, another advantage of trusts is their continuing effectiveness even if the donor dies or becomes
incapacitated.

What kinds of trust are there?

There are several types of trusts, some of the more common of which are discussed below:

Revocable Trust. A revocable trust is sometimes referred to as a "living" or "inter vivos" trust.
Such a trust is created during the life of the donor rather than through a will. With a revocable trust,
the donor maintains complete control over the trust and may amend, revoke, or terminate the trust at any time.
So, the donor is able to reap the benefits of the trust arrangement while maintaining the ability to change
the trust at any time prior to death. The disadvantage of a revocable trust is that the trust assets are
countable to the donor for purposes of determining Medicaid eligibility.

Irrevocable Trust. An irrevocable trust is created during the life of the donor, who thereafter
may not change or amend the trust. Any property placed into the trust may only be distributed by the trustee
as provided for in the trust instrument itself. For instance, the donor can provide that he or she will
receive income earned on the trust property. The irrevocable trust where the donor retains the right to
income only is a popular tool for Medicaid planning.

Testamentary Trust. A testamentary trust is a trust created by a will. Such a trust has no
power or effect until the will of the donor is probated upon his or her death. Although a testamentary
trust will not avoid the need for probate and will become a public document as it is a part of the will,
it can be useful in accomplishing other estate planning goals. For instance, the testamentary trust can be
used to provide funds for the surviving spouse in a form that will not be considered available and not have
to be spent down if he or she should seek Medicaid eligibility to pay for long-term care.

Supplemental or Special Needs Trust. A supplemental needs trust can be created by the donor during
life or be part of a will. Its purpose is to enable the donor to provide for the continuing care of a
disabled spouse, child, relative or friend. The beneficiary of a well-drafted supplemental needs trust
will have access to the trust assets for purposes other than those provided by public benefits programs.
Thereby, the beneficiary will not lose eligibility for benefits such as Supplemental Security Income,
Medicaid, and low-income housing.

How can I find out if I should have a trust?

As with all estate planning, anyone considering a trust should contact an attorney who is skilled and
experienced in this area.

Supplemental Needs Trusts

What is a supplemental needs trust?

Supplemental needs trusts (also known as "special needs" trusts) are drafted so that the funds will not
be considered to belong to the beneficiary in determining his or her eligibility for public benefits,
such as Medicaid, Supplemental Security Income (SSI), or public housing. These trusts are designed not to
provide basic support, but instead to pay for comforts and luxuries that could not be paid for by public
assistance funds, such as education, recreation, counseling, and medical attention beyond what is required
simply to maintain an individual.

Who can create a supplemental needs trust?

Very often supplemental needs trusts are created by a parent or other family member for a disabled child
(even though the child may be an adult by the time the trust is created or funded). But the disabled individual
can often create the trust himself or herself, depending on the program for which he or she seeks benefits.
Medicaid is the most restrictive program in this regard, making it difficult for a beneficiary to create a
trust for his or her own benefit. But even Medicaid has a "safe harbor" allowing for the creation of a
supplemental needs trust with a beneficiary’s own money if the trust meets certain requirements. This is
sometimes called a "(d)(4)(A)" trust, referring to the authorizing statute.

Must the supplemental trust be irrevocable?

Yes, if it is created and funded by the person seeking public benefits himself or herself. No, if it is
created and funded by someone else for the benefit of a person receiving or seeking public benefits.

Are there restrictions on how the funds in the supplemental needs trust may be spent?

Yes and no. Yes, each public benefits program has restrictions that must be complied with in order not
to jeopardize the beneficiaries' continued eligibility for public benefits.

For instance, the beneficiary would lose a dollar of SSI benefits for every dollar paid to him or her directly.
In addition, payments by the trust for food, clothing, or housing for the beneficiary are considered "in kind"
income and, again, the SSI benefit will be cut one dollar for every dollar of value of such "in kind" income.
Some attorneys draft the trusts to limit the trustee's discretion to make such payments. Others do not limit
the trustee’s discretion, but instead counsel the trustee on how the trust funds may be spent, permitting
more flexibility for unforeseen events or changes in circumstances in the future. The difference has to do
with philosophy, the situation of the client, and the amount of money in the trust.

Durable Power of Attorney

What is a power of attorney?

A power of attorney is the grant of legal rights and powers by a person, the "principal", to another,
the "agent" or "attorney-in-fact". The attorney-in-fact, in effect, stands in the shoes of the principal
and acts for him or her on financial and business matters. The attorney-in-fact can do whatever the
principal may do—withdraw funds from bank accounts, trade stock, pay bills, cash checks—except as limited
in the power of attorney. This does not mean that the attorney-in-fact can just take the principal's
money and run. The attorney-in-fact must use the principal's finances as the principal would for his or
her benefit.

When does the power of attorney take effect?

Unless the power of attorney is "springing", it takes effect as soon as it is signed by the principal.
A "springing" power of attorney takes effect only when the event described in the instrument itself
takes place. Typically, this is the incapacity of the principal as certified by one or more physicians.

Does the power of attorney take away a principal's rights?

No, absolutely not. Only a court can take away a principal's rights in a conservatorship or guardianship
proceeding. An attorney-in-fact simply has the power to act along with the principal.

Can the principal change his or her mind?

Certainly. A principal may revoke a power of attorney at any time. All a principal needs to do is send
a letter to his or her attorney-in-fact telling them that their appointment has been revoked. From the
moment the attorney-in-fact receives the letter, he or she can no longer act under the power of attorney.

Area of Practice

Estate Planning

Criminal Defense

No one likes to think about one’s own death. However, planning ahead can help your family avoid
unnecessary complications, delay, and expense. This may be done through wills, trusts, joint
ownership, and life insurance.

Mark represents clients charged with all felonies and misdemeanors, including Intoxication and
Alcohol Offenses, Drug Offenses, Personal Crimes, and Property and Financial Crimes.